COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72447 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THOMAS MIKOL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 9, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-343852 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GEORGE MINEFF, ESQ. Cuyahoga County Prosecutor 1630 Standard Building 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: -2- Thomas Mikol, defendant-appellant, appeals from the decision of the trial court convicting him of two counts of felonious assault upon a police officer and sentencing him accordingly. Mikol assigns the following two errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO ADEQUATELY CONSIDER STATUTORY FACTORS DURING SENTENCING WHICH INDICATE THAT A COMMUNITY CONTROL SANCTION OR COMBINATION OF COMMUNITY CONTROL SANCTIONS WOULD 1) ADEQUATELY PROTECT THE PUBLIC FROM FUTURE CRIME BY THE APPELLANT, AND 2) PUNISH THE APPELLANT FOR HIS CRIME. II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT WHEN IT FAILED TO IMPOSE THE SHORTEST PRISON TERM AUTHORIZED FOR APPELLANT'S OFFENSE. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Thomas Mikol, defendant-appellant, and his father, David, had an argument at David Mikol's home. When Mikol began damaging the inside of David Mikol's home, David Mikol flagged down a police officer, told him there was an altercation and that Mikol had a crossbow. Officers entered the home. When Mikol pointed the crossbow at one of the officers, the officers used pepper spray in an attempt to subdue him. Mikol threw down the crossbow, ran into the bathroom, and began washing his face. He was then arrested. Mikol pleaded guilty to two counts of felonious assault with police officer specifications. At his sentencing hearing, the court heard statements from Mikol, his attorney, George Mineff, Jr., and from Officer Andrew Miles, one of the victims of the felonious assault. Mineff argued that Mikol needed psychiatric -3- help rather than incarceration and urged the court to impose community sanctions. Mineff also submitted a sentencing memorandum which included letters from Mikol's psychiatrist, as well as from his friends, co-workers, supervisors, and family. Expressing her belief that he was a threat to the public, the trial judge sentenced Mikol to two concurrent six year terms in prison. This appeal followed. In his first assignment of error, Mikol argues the court erroneously failed to consider statutory factors that indicated the statutory sentencing goals could adequately be served by sentencing him to community control sanctions rather than incarceration. Preliminarily, we note that a trial court has broad discretion in sentencing. A reviewing court will not disturb a sentence unless the trial court has abused its discretion in sentencing an offender. State v. Polick (1995), 101 Ohio App.3d 428, 431; State v. Yontz (1986), 33 Ohio App.3d 342, syllabus. Generally, a trial court's sentence will not be reversed if the sentence is within the statutory limits and the trial court considered the statutory criteria set forth in R.C. 2929.12. Polick, supra. Mikol pleaded guilty to felonious assault in violation of R.C. 2903.11. Under R.C. 2903.11(B), if the victim is a police officer, felonious assault is a first degree felony. R.C. 2929.14 lists the prison terms for a first degree felony as three, four, five, six, seven, eight, nine, or ten years. The trial court's sentence of six years was authorized under the statute. The only -4- issue left for our determination is whether the trial court considered the statutory criteria set forth in R.C. 2929.12. When sentencing Mikol, the trial court made the following statements on the record: ***[M]y duty is to protect the public and that includes members of your family, members of the Brook Park Police Department, members of patrons at bars that you go to. That is my duty and I don't find anything in any of these letters and these reports that tell me that you are not a threat, and an ongoing threat. Had this incident been the last incident, September of `96, I could possibly believe that with proper treatment you would not be an ongoing threat, but it's not. It's not. (Tr. 16.) We note the trial court did not specifically address the R.C. 2929.12 factors. However, where the record is silent, it is presumed that the trial court considered the factors listed in R.C. 2929.12. State v. Cyrus (1992), 63 Ohio St.3d 164, 166; State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of the syllabus. The trial court stated on the record that it read the letters submitted by Mikol's psychiatrist, Dr. Comstock (Tr. 8.) as well as all the letters submitted on Mikol's behalf. (Tr. 11). A sentencing report was filed in the case. Since a presentence report is mandated in felony cases, it is presumed that the trial court utilized the report and that the court complied with R.C. 2929.12. State v. Koons (1984), 14 Ohio App.3d 289, 290-291. We have held that the presumption is not valid in cases where the defendant receives the maximum sentence. See State v. Banks (Nov. 20, 1997), Cuyahoga App. No. 72121, unreported; State v. Collins (Dec. 11, 1997), Cuyahoga App. Nos. 71717, 71718, unreported (Karpinski, J., concurring). Where the maximum sentence is imposed, R.C. 2929.19(B)(2)(d) & (e) require the trial court must state its reasons for the sentence. However, in this case, Mikol received a six year sentence, less than the maximum ten year sentence he could have received. In this case, the trial court was not required to state the reasons for its sentence on the record. Because the record gives no indication that the trial court failed to consider the statutory sentencing factors, Mikol's assignment of error is overruled. Judgment affirmed. It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .